Schultz v. Anderson

• Decision Date: 14 June 1941
• Citation: 151 S.W.2d 1068,177 Tenn. 533
• Parties: SCHULTZ v. ANDERSON.
• Court: Tennessee Supreme Court

151 S.W.2d 1068

177 Tenn. 533

SCHULTZ v. ANDERSON.

Supreme Court of Tennessee.

June 14, 1941

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Bill in equity by Ellsworth Schultz against Ed Anderson for specific performance of a contract. A demurrer to the bill was overruled and an appeal was allowed by the chancellor.

Decree reversed, demurrer sustained and bill dismissed.

Grimm & Tapp, of Knoxville, for complainant.

Joel H Anderson, of Knoxville, for defendant.

McKINNEY Justice.

The bill herein was filed for the purpose of enforcing the specific performance of the following written contract:

"Sale Contract.

"This contract made and entered into by Ed G. Schmid, Agents for Ed. Anderson of the first part and Ellsworth Schultz, of the second part: Witnesseth: that party of the first part has sold unto party of the second part, who hereby buys the following described premises:

"Situated in the Second Civil District of Knox County, Tennessee, and being a certain tract of land containing ten and one-half acres lying on the southern side of Tazewell Pike, improved by a two story frame dwelling and out buildings.

"In consideration of $50.00 paid by second party, this contract is made binding on both parties.

"When the party of the first part shall deliver deed free and clear of all encumbrances, except the State and County taxes for the year 1940 which shall be prorated as of the date of the delivery of the deed, the second party shall convey by Warranty Deed to owner five certain lots in North Hills Addition, Knoxville, Tennessee, and pay an additional sum of $6500.00 cash, and the above amount paid shall be credited on the cash payment of the property. This contract is made for the purpose of binding both the first and second parties.

"It is hereby understood that in case of first party's failure to close deal with owner, then this trade shall become void and the payment of above $50.00 shall be refunded to party of the second part.

"Date October 14, 1940.

"(s) Ed. C. Schmid, Agt.

"(s) Ellsworth Schultz

"Approved by Owner Ed. Anderson

"In case this contract is not accepted by noon Oct. 15th, 1940, then same shall become null and void."

To the bill the defendant interposed a demurrer, two of the grounds thereof being as follows:

"II. The bill shows on its face that the complainant was a vendor, purporting to convey to the said defendant five lots in North Hills Addition, Knoxville, Tennessee. These lots were not identified or described in writing, and the description thereof in the sale contract, appearing in section two of the original bill, is wholly insufficient to identify the real estate which the complainant proposed to sell to this defendant. For this reason said contract fails to comply with the statute for the prevention of frauds and perjuries and is wholly insufficient to bind either the complainant herein or this defendant.

"III. The complainant was not bound by said written contract to convey any real estate to this defendant, the real estate therein referred to as property to be conveyed to the defendant by the complainant not being described or identified with certainty so as to comply with the statute of frauds requiring a writing with respect to real estate transactions, and the complainant not being bound by said contract, the defendant was not bound thereby, and there was no mutuality of obligation."

The chancellor overruled the demurrer and, exercising his discretion, allowed an appeal to this Court from his decree.

By this contract each party was in effect selling to the other certain real estate. It is a fundamental principle in the law of specific performance that for the relief to be granted mutuality of remedy must exist. Accordingly specific performance will not be granted in favor of one party unless it can also be granted in favor of the other. 58 C.J. 866, 867.

Clearly the description of the five lots in the North Hills Addition is insufficient. Dobson v. Litton, 45 Tenn. 616, 5 Cold. 616. In the opinion in that case the following rule was announced: "Where an instrument is so drawn that, upon its face it refers necessarily to some existing tract of land, and its terms can be applied to that one tract only, parol evidence may be employed to show where the tract so mentioned is located. But where the description employed, is one that must necessarily apply with equal exactness to any one of an indefinite number of tracts, parol evidence is not admissible, to show that the parties intended to designate a particular tract by the description."

The rule in that case was announced with reference to the following writing, namely: "I have this day sold to W. K. Dodson, a certain tract of land, containing nine acres and sixty-six poles, near the junction of Broad Street, Nashville, and the Hillsboro' Turnpike, Davidson County, Tennessee, for the sum of four thousand dollars," etc.

In the contract under consideration the description is not as full as it was in Dobson v. Litton, it simply being "five certain lots in North Hills Addition, Knoxville, Tennessee." The rule announced in Dobson v. Litton has been approved by this Court in numerous subsequent decisions.

Complainant, evidently in anticipation of a reliance by defendant on the statute for the prevention of frauds and to obviate the effects thereof, made the following allegation in his bill: "That upon the execution and delivery of said contract to complainant, the respondent procured from complainant the deeds wherein said five lots in North Hills Addition to Knoxville, Tennessee, were conveyed to complainant, et ux; had the title to said lots examined and approved by his Attorney," etc.

Section 7831 of the Code provides, in part, as follows: "No action shall be brought: *** Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year; *** Unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized."

The rules of construction formulated by this Court with respect to the statute of frauds have been accurately and succinctly stated by Judge Williams in the notes to his Annotated Code of Tennessee, Vol. 5, p. 394, together with a list of supporting decisions, as follows:

"It is not necessary that the contract be contained in a single document. It will be sufficient if it can be plainly made out, in all its terms, from any writings of the party, or even from his correspondence. Blair v. Snodgrass, 1 Sneed 1, 33 Tenn. 1; Wright v. Cobb, 5 Sneed 143, 37 Tenn. 143; Holms v. Johnston, 12 Heisk 155, 59 Tenn. 155; Lee v. Cherry, 85 Tenn. 707, 1 Pick. 707, 4 S.W. 835, 4 Am.St.Rep. 800. See Johnson v Somers, 1 Humph. 268, 20 Tenn. 268; Swiney v. Swiney, 14 Lea 316, 82 Tenn. 316; Brewer v. DeCamp Glass Casket Co., 139 Tenn. 97,...